Uncle Lee's

National Labor Relations Board - Board Decisions

Jun 16, 1975

218 N.L.R.B. 461 (N.L.R.B. 1975)

UNCLE LEE'S
Sands Industries, Inc. d/b/a Uncle Lee's and District
Union Local 227, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO.
Case 9-CA-8635
June 16, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On January 7, 1975, Administrative Law Judge
Josephine H. Klein issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge and to
adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Sands Industries,
Inc. d/b/a Uncle Lee's, Paducah, Kentucky, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
' The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing her findings
We note the following inadvertent errors in the Administrative Law
Judge's Decision which do not affect her conclusions or our adoption
thereol ' In sec. II, A, par. 8, and in sec . II, B, 1 , par. 3, the union's
organizational campaign began on Saturday, June 1 (rather than May 31),
and the date of the union meeting was Thursday (not Friday), June 6. In
sec. II, B, 1, par. 5, Snow spoke to Ray on June 6, not March 8, about the
reason for discharging Blackman and Bailey . In sec. II, B, 1, par. 7, the
union solicitation referred to occurred on Sunday, June 2 (not June 1) and
the two employees were discharged on Wednesday (not Thursday), June 5.
Finally , in ,sec. II , B, 2, par 4, the trash can incident occurred on June 15
rather than June 1.
2 We do not rely on the Administrative Law Judge 's discussion and
conclusion in sec. II , B, 1, par. 9, and fn. 10 concerning the industrial
relations practices of other firms in which Respondent and/or Respondent's
president have a financial interest, as we regard that matter as irrelevant to
the issues presented in the instant case Neither the presence nor absence of
unfair labor practices at those enterprises serves to establish union animus
or lack of it insofar as the events herein are concerned.
DECISION
STATEMENT OF THE CASE
461
JOSEPHINE H. KLEIN,' Administrative Law Judge:
Pursuant to a charge filed on July 11, 1974 ,2 by District
Union Local 227, Amalgamated Meat Cutters and Butcher
Workmen of North America , AFL-CIO (the Union), a
complaint was issued on August 30 against Sands Indus-
tries, Inc., d/b/a Uncle Lee's (Respondent), alleging that
on several occasions in late May and in June , at its store in
Paducah , Kentucky, Respondent , through its store manag-
er, assistant store manager, and supervisors, interfered with
the rights of the employees under Section 7 of the Act3 and
in June discriminatorily discharged three employees, in
violation of Section 8(a)(1) and (3) of the Act.
Pursuant to due notice, a hearing was held before me in
Paducah , Kentucky, on October 16, 1974 . All parties were
represented by counsel and were afforded full opportunity
to present oral and written evidence and to examine and
cross-examine witnesses. Oral argument was waived at the
hearing. Posttrial briefs have been filed by all parties.
Upon the entire record , together with careful observation
of the witnesses and consideration of the briefs , I make the
following:
FINDINGS of FACT
1. PRELIMINARY FINDINGS
Respondent, a Missouri corporation , operates a retail
store in Paducah , Kentucky, where it sells dry goods,
drugs , hard goods, and various merchandise . During the
preceding 12 months , a representative period, Respondent
purchased in interstate commerce goods and products
valued in excess of $50,000 which it had shipped to its
Paducah store directly from points outside Kentucky.
During the same period Respondent had gross sales in
excess of $500,000. Respondent is, and has been at all
times material herein , an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
1 The transcript is hereby corrected throughout to show this as the
correct spelling of the Administrative Law Judge's name.
2 Except where otherwise stated , all dates herein are in 1974.
3 National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519,
29 U S.C. Sec. 151, et seq ).
218 NLRB No. 79
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE UNFAIR LABOR PRACTICES
A. Section 8(a)(1)
Benjamin D. Pessin, Respondent's president, has for
many years operated general retail discount and drug
stores through Respondent corporation and, apparently,
through other corporate entities. In August 1969, Respon-
dent acquired Uncle Lee's in Paducah, Kentucky, from
Lee Dyer, its former owner. Charles Snow, store manager,
and Walter Bailey, Jr., assistant manager, had been at the
store since long before Respondent took over.
Sometime late in May, in the store's office, employee
JoAnn Blackman and her husband spoke with Charles
Snow, about Mrs. Blackman's request for a wage increase.
Employee Glenn Bailey, brother of Assistant Store
Manager Walter Bailey, Jr., entered the office and joined
the conversation. According to Mr. and Mrs. Blackman
and Glenn Bailey, in the course of the conversation Glenn
said that what the store needed was a good union. These
three witnesses all testified that Snow replied, in effect, that
if the employees brought a union in Pessin would close the
store, as he had closed one in Muskogee, Oklahoma.4
Snow denied having made the statement about Respon-
dent's willingness to close the store and move all the
merchandise out, as it had done with the Oklahoma store.
To support his denial, Snow testified that, while he had
known of the Oklahoma' closure and some goods from
Muskogee had been sent to the Paducah store, he never
knew why the Oklahoma store had been closed. Thus, he
contended, he could not have attributed the Oklahoma
closure to umoriization. Pessin testified that the Oklahoma
store had been closed solely because of lack of business
and there had not been any union problem there.
Even if it be assumed that the Oklahoma store closure
had not been dictated by union activities and that Snow
did not know the reason for that closing, it would not
necessarily follow that he did not say, as he was quoted,
that in the event of union activities the Paducah store
would be closed as the Muskogee store had been. He might
well have referred -to the Oklahoma closing, of which he
was aware, merely to establish that Respondent was able
and willing to close a store abruptly.
Based on careful observation of the demeanor of the
witnesses and the numerous inconsistencies and inadequa-
cies of the testimony of Respondent's witnesses, as
described below, I find Snow not a credible or reliable
witness. Thus, I discredit his denial that he said Respon-
dent would have no qualms about closing the Paducah
store in the event of unionization. On all the evidence, I
4 Glenn Bailey testified that Snow had made a similar statement some
time in 1973. That testimony, which I credit, was admitted solely as
background evidence.
5 JoAnn Blackman also testified that in the same conversation Snow
indicated that working conditions would be worsened in the event of
unionization . Since the complaint contained no corresponding allegation,
no finding is here made with respect thereto.
6 In its brief, Respondent, referring to Blackman's testimony that Snow
said that he thought Pessin would "do the same" at Paducah as he had done
credit Mr. and Mrs. Blackman and Glenn Bailey and
accordingly find, that, as alleged, Respondent, through
Snow, threatened store closure in the event of unioniza-
tion.5
Employee Blackman testified that about a week later
Benjamin D. Pessm, Respondent's president, telephoned
the store and complained about some markups. At that
point Wilma (Mrs. Charles) Snow, manager of the clothing
department, expressed an uncomplimentary opinion about
Pessin's intelligence. Mr. Snow rebuked his wife, saying
that Pessin owned the business and would run it as he saw
fit. According to Blackman, Snow added: "This is just like
this damn union business . . . . There's not going to be no
union in this store.... He'll lock the damn doors up and
haul it out first." Although Mrs. Snow denied ever having
cast aspersions on Pessin's intelligence, there was no
effective denial of Blackman's testimony as a whole, which
I credit.
Snow's statements, as credibly quoted by the employees,
manifestly violated Section 8(a)(1) of the Act. See, e.g.,
Chemvet Laboratories, Inc. v. N.L.R.B., 497 F.2d 445 (C.A.
8, 1974).6
As is more fully discussed below, beginning on May 31
JoAnn Blackman and Glenn Bailey set about organizing
for the Union and solicited employees' attendance at a
meeting to be held on Friday, June 6. On the evening of
June 5 Blackman and Bailey were discharged by Snow. On
June 6 Snow telephoned employee Sheila Ray, who was at
home, having then been on sick leave for about a week.
According to Ray, Snow asked her if she knew anything
about the Union. When she answered in the negative, he
asked her how she would vote. She testified that she
answered: "I guess I'd vote No, because I didn't know
anything about the Union." Ray testified that Snow then
said: "Well, that's good because that's the reason I had to
fire JoAnn Blackman and Glenn Bailey, because they were
pushing for the union."
Snow admitted that he had telephoned Ray at her home
and questioned her about the Union. He was not examined
about, and thus did not deny, Ray's testimony that he told
her that Blackman and Bailey had been fired because of
their union activities.
Employee Penny Mason, who had been laid off in April
or May, was recalled to work in the drug department on
June 6. She reported early on June 7, the morning after the
first union meeting. As she was standing talking with fellow
employees before commencing the day's work, Snow
approached her and asked if she knew anything about the
Union and if she had attended the union meeting.? On
direct examination Snow testified he did not recall any
conversation similar to that described by Mason and that,
to the best of his knowledge, there was none. However, on
cross-examination he admitted having had conversations
at Muskogee , says: "This was only prophecy at best." Certainly an
employer's representative is not free to "prophesy" that the employer will
take unlawful action See N.L.RB v. Gissel Packing Co., Inc., 395 U.S. 575,
619-620 (1969).
T According to Mason, Snow also said "that if the union came in the
store couldn't operate, he'd have to close the store or something." Since the
complaint does not allege that statement as violative of Act, no finding is
made in connection therewith.
UNCLE LEE'S 463
in which he asked some employees about the Union and
conceded it was "possible" that Mason had been present.
Snow's testimony and demeanor were evasive through-
out. Additionally, as specified below, in several important
respects his testimony was in conflict with statements he
made to a Board agent before trial and with testimony of
other witnesses for Respondent. Mason, on the other hand,
impressed me as a forthright and honest witness. It is true
that the charge in this case alleged that she had been
discriminatorily discharged, but no such allegation was
included in the complaint. She testified that she had quit
Respondent's employ because she was afraid that she, like
other employees, would be discharged because of union
sympathy. However, she acknowledged that she had
voluntarily quit and nothing in her demeanor or testimony
suggested that hostility toward Respondent had led her to
any prevarication. On all the evidence, I credit Mason's
testimony.
No reason for the questioning was given and there was
no assurance against reprisals. Thus the questioning,
particularly in conjunction with threats of store closure,
was violative of Section 8(a)(1), as alleged. Cf., e.g.,
N. L R B. v. Groendyke Transport, Inc., 493 F. 2d 17 (C.A. 5,
1974); N.L.R.B. v. Tekner-Apex Company, 468 F.2d 692,
694-695 (C.A. 1, 1972).
Employee Ray testified to an incident occurring on or
about June 11, the day she returned to work after 2 weeks'
sick leave. Mrs. Charles Snow, then manager of the store's
clothing department, telephoned the store to talk to
Assistant Manager Walter Bailey. Shortly after Bailey went
to the phone, employee Jan Hulen said that she was the
person Mrs. Snow wanted to talk to and took over. Ray
heard Hulen say on the phone: "Well, I didn't go." Ray
indicated that she understood Hulen to have been referring
to a union meeting that had been held at Blackman's
home. At the end of Hulen's conversation, Walter Bailey,
looking at Ray, said: "You signed a union card." Both Ray
and another employee immediately said (untruthfully):
"No." Bailey thereupon looked at Ray and said: "Yes, you
did." Bailey was not examined about this incident and thus
did not deny Ray's testimony.
On all the evidence, I credit Ray and fmd, in accordance
with her testimony, that Respondent, through Bailey,
violated Section 8(aX1) of the Act by giving the impression
that employee union activities were being kept under
surveillance. Filler Products, Inc. v. N.LR.B., 376 F.2d 369,
374-375 (C.A. 4, 1967); Hendrix Manufacturing Company,
Inc. v. N.L.R.B., 321 F.2d 100, 104 (C.A. 5, 1973).
B. Section 8(a)(3)
1. Discharge of JoAnn Blackman and Glenn
Bailey
JoAnn Blackman had been employed at the Paducah
store from around 1964 to 1967 and then reemployed in
August 1973. In October 1973 she was made "supervisor"
or "manager" of the drug department. While she was
described as the "supervisor" of the department, it is clear
that she did not have or exercise any of the authority or
8 Respondent called two employee witnesses who so testified. It was then
stipulated that four additional named employees, who were present at the
functions which would make her a "supervisor" within the
purview of Section 2(11) of the Act. Respondent has never
contended that Blackman was other than an employee
entitled to the protection of the Act.
Glenn Bailey had worked in the warehouse of Uncle
Lee's since February 1968. Although Benjamin Pessin,
Respondent's president, testified that he considered Bailey
to have been "in charge of' the warehouse, there is no
evidence that he was a "supervisor" within the meaning of
the Act and Respondent does not so contend.
As previously found, in a conversation late in May
among Snow, Mr. and Mrs. Blackman, and Glenn Bailey,
Bailey expressed the opinion that the store needed a good
union. On Friday, May 31, Mrs. Blackman made contact
with a union representative and arranged a meeting for the
evening of Friday, June 6. On Saturday she and her
husband, who is a longtime union activist, met with Mr.
and Mrs. Glenn Bailey to discuss a campaign to organize
Uncle Lee's employees. As planned at that time, employees
Blackman and Bailey, neither of whom was scheduled to
work on Sunday, spent about an hour and a half at the
store early Sunday afternoon. They spoke in favor of the
Union to all the employees then working "with the
exception of maybe one or two that [they] knew would go
straight to the office and tell them." Blackman and Bailey
urged attendance at the forthcoming union meeting.
Although Glenn testified that he personally had not seen
his brother, Walter, at the store on Sunday, the evidence is
undisputed that Walter had been in charge of the store at
that time and, as customary, had spent most of his time on
the selling floor. In the ensuing few days, Blackman and
Bailey made similar prounion appeals to the relatively few
employees who had not been on duty on Sunday. There
was uncontradicted evidence, much of it provided by
employee witnesses on behalf of Respondent, that during
this period there was a great deal discussion of the Union
among the employees at the store and that Blackman,
Bailey, and another employee, Charlene Miller, were the
ones speaking for the Union.8
After having arrived at home after work on the evening
of June 5, Glenn Bailey received a telephone call from
Snow advising him that he was discharged, effective
immediately. Shortly thereafter Snow telephoned Black-
man's home and left a message for her to call him as soon
as possible. Upon receiving the-message, Blackman, fearing
that she was about to be fired, telephoned Bailey. When he
informed her of his discharge, instead of telephoning Snow,
Blackman returned to the store, where she was discharged.
I have previously credited employee Ray's uncontradict-
ed testimony that on March 8 Store Manager Snow told
her that Blackman and Bailey had been fired for "pushing
the union." This alone, amounting to an extrajudicial
admission by a representative of Respondent, may in itself
constitute sufficient evidence to establish that the discharg-
es were violative of Section 8(a)(3) and (1) of the Act.
N.L.R.B. v. John Langenbacher Co., Inc., 398 F.2d 459, 463
(C.A. 2, 1968), cert. denied, 393 U.S. 1049; N.LR.B. v. L.
C. Ferguson and E. F. Von Seggern d/bla Shovel Supply
Company 257 F.2d 88, 92 (C.A. 5, 1958). Cf. N.L.RB. v.
hearing, would testify to the same effect.
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Commonwealth Foods, Inc. (West End) d/b/a Farm Fresh
Supermarkets, 506 F.2d 1065 (CA. 4, 1974). However,
entirely independent of any such "admission" by Snow,
other evidence leads inevitably to the conclusion that
Bailey and Blackman were discharged because of their
union activities.
Respondent apparently maintains that it did not have
knowledge of any specific union activities at the store at
that time and, specifically, that it did not know anything
about Blackman's and Bailey's organizational activities.
Snow testified that, although there had been generalized
union talk off and on throughout the store's history, he
heard nothing about the current organizational drive until
around June 20, when President Pessin telephonically
informed him of the Union's representation petition, filed
on' June 19 (Case 9-RC-10619). However, Assistant
Manager Bailey testified that around 10 p.m. on June 5,
"the day JoAnn and Glenn were fired," Snow telephoned
Walter at home and "said something about they were
going to have a union meeting that night, or the next
night "9 No explanation has been offered for the irrecon-
cilable conflict between Snow and Bailey on this vital
question.
Bailey was not questioned about his observations, if any,
of-die activities of his brother and Blackman at the store on
Sunday, June 1. It is most improbable that the supervisor
in charge would not have seen the open solicitation on
June 1 by employees not scheduled to work. His failure to
deny having seen such unusual activity supports the
inference that he was aware of the conduct. It is
unreasonable to assume that the assistant manager would
not have reported his observation to the 'manager.
Additionally, in view of the uncontradicted evidence of
continued solicitation and the virtually constant union talk
among the employees in the next few days, it is inconceiva-
ble that Snow did not acquire personal knowledge of the
organizational activities before the two employees were
discharged after having worked full shifts on Thursday,
June 5. Indeed, on cross-examination Snow admitted that
he had had conversations about the Union with several
employees before learning of the Union's demand and
petition. He admitted that in these conversations he asked
some employees "if they had any knowledge of the union
or whatever" and that he willingly listened to any
information the employees "volunteered."
Respondent apparently also maintains that there is no
evidence of union animus on the part of Respondent. The
violations of Section 8(a)(1) heretofore found negate this
contention.
Brief reference may nonetheless be made to Respon-
dent's contention that union animus is refuted by the fact
that Respondent and/or other corporations or enterprises
owned or controlled by Pessin are unionized. Pessin
testified that his warehouse in St. Louis has been under a
9 Because of an order sequestering witnesses, Bailey had not heard
Snow's prior testimony. However, both Snow and Bailey had lunch with
Respondent's president , Benjamin D. Pessin, and its counsel, Sam S . Pessin,
Esq. At lunch they "went over what had been said" in the prelunch
presentation of the General Counse}'s case.
10 As one of his unionized enterprises Pessin listed a "Sav-Mart"
operation in Collinsville , Illinois. In Ph'its Sav-Mart Service, 199 NLRB 835
(1972), it was found that Phils Sav-Mart Service in Collinsville was part of
union contract for 4 years; that he has five retail stores in
St. Louis which have been under union contract for 12
years; and it has four "leased departments" in unionized
stores in Illinois. It was clear on Pessm's direct testimony
that he was including in his list all unionized operations in
which he was interested, and was not limiting them to
those operated through Respondent corporation. However,
when he was cross-examined as to unfair labor practice
proceedings involving his stores, he sought refuge in the
legal separation of his corporate entities. Although the
General Counsel has not provided references to any
relevant prior proceedings, as he said he would, Pessin's
testimony on cross-examination is in itself sufficient to
establish that enterprises in, which he is financially
interested have previously been found guilty of unfair labor
practices.10 ' There is no credible evidentiary basis for
Respondent's apparent claim that it has proven its lack of
union animus.
The evidence thus clearly establishes a prima facie case of
discriminatory discharge. The two leaders of a' union
organizational campaign were abruptly discharged, with-
out prior warning, within a few days after they commenced
solicitation among the employees and on the eve of the first
union meeting, which they had, arranged and sponsored.
Thus, even without Snow's "admission" to employee Ray,
the General Counsel's evidence as a whole establishes a
prima facie case of discriminatory discharges. N.L.RB. v.
Evans Packing Co., 463 F.2d 193, 195 (C.A. 6, 1972);
N.L R.R. v. Jamestown Sterling Corp., 211 F.2d 725-726
(C.A. 2, 1954); N.L.RB. v. Stemun Manufacturing Compa-
ny,-Inc. 423 F.2d 734, 741-742 (C.A. 6, 1970). Respondent's
evidence designed to rebut this presumption by showing
that Blackman and Bailey were discharged "for cause,"
hereinafter analyzed, is so inadequate as actually to
reinforce the inference of discriminatory, motivation.
N.L R.B. v. Minnotte Manufacturing Corp., 299 F.2d 690,
692 (C.A. 3, 1962),; Burk Bros. v. N.L.R.B., 117 F.2d 686-
687 (C.A. 3, 1941), cert denied, 313 U.S. 588.
a. JoAnn Blackman
As "manager" or "supervisor" of the drug department,
Blackman had considerably greater responsibilities and
duties than other employees in' the department. She was
paid $1.85 per hour, whereas all (or at least most) other
employees in the department were paid the legal minimum
of $1.60. In addition, to assure her approximately $100 per
week, which she felt she needed, she alone was scheduled
to work 6 days per week, with, of course, time and a half
for the extra 8-hour day. When the legal minimum wage
-was increased as of May 1, Blackman, along with all other
an integrated enterprise with other corporations owned in part by Ben
Pessm and Sam Pessm , his cousin and counsel for Respondent. The
integrated enterprise, doing business as Sav-Mart, was found to have
committed unfair labor practices, including discriminatory layoffs and
changes in working conditions and acts of interference , in violation of Sec.
8(a)(l) and (3).202 NLRB 267 (1973), enfd. in major part sub nom. N L.R.B.
v Sachs, 503 F.2d 1229 (C.A. 7, 1974). Sam Pessin appeared as counsel for
two of the respondents in those proceedings.
UNCLE LEE'S 465
employees in the drug department, was increased to $2 per
hour.11 Openly displeased by the loss of her pay differen-
tial over the other workers, she asked Snow for a raise
several times in May. Snow said he would do his best and
asked her to give him a few weeks to see what could be
done. He testified that he kept his word and tried,
unsuccessfully, to get her a raise. When no increase was
forthcoming, she spoke to Snow again late in May. He said
he was working on the matter and then proceeded to ask
what she would do if she did not get a raise. According to
Blackman, she replied that she would proceed to do what
all the other drug-department employees were doing, that
is, she would take care of her own shelves and sales and
then assume a vulgarly described position and do nothing;
she would not continue to assume the extra responsibilities
of "managing" the department or perform duties which she
thought other employees improperly failed to perform.
Shortly thereafter, with Snow's permission, she spoke to
Carroll R. Sinks, Respondent's systemwide drug supervi-
sor. She testified that she repeated to Sinks essentially what
she had said to Snow. Snow and Sinks maintained that
Blackman had not qualified her threat, but, on the
contrary, had said that unless she received a 'pay raise she
would assume her vulgarly described posture and do
absolutely nothing; that she said that she would not quit,
but would have to be fired.
On direct examination Snow testified that after Black-
man made her vulgarly worded threat to do no work,
"[s ]he pretty well followed through with her threat. The
merchandise in the warehouse started to accumulate; .. .
she definitely was not doing her job any longer." On cross-
examination he specifically dated Blackman's "threat" on
June 1 or 2. On cross-examination he said that "[o]n two or
three occasions" he told Blackman "to get thatmerchan-
dise out of the warehouse, and she failed to do it." After
considerable evasion, Snow conceded that he had never
given Blackman any warning, oral or written, bf possible
discharge (or apparently of any other, disciplinary action)
prior to her abrupt discharge on the .evening of June 5,
after she had completed a full day's work, during which
Snow could not recall having had any conversation with
her.
Wilma Snow in general corroborated her husband's
testimony. She testified that, while she observed a steady
decline in Blackman's performance after the "threat," Mrs.
Snow said nothing to Blackman and did not report her
observations to anybody else. She also conceded that the
clothing department, which she manages, is in a different
part, of the store from the drug department and she "very
seldom" has any contact with the drug department.
Sinks ' testimony injected a somewhat different picture.
He maintained that Blackman's work had begun to
deteriorate noticeably around Easter, in the middle of
April. At that time she complained about her great
burdens, principally excessive paperwork. Sinks thereupon
arranged for some of the paperwork to be taken over by
Respondent's main office. On rebuttal Blackman corrobo-
rated this transfer of paperwork but maintained that, if
anything, it increased her work because thereafter she had
to make two additional copies of papers. Sinks was evasive
when cross-examined about his knowledge of Blackman's
illness during the period involved. On rebuttal Blackman
credibly testified that in April she had been hospitalized for
7 days and then confined to her home for about 10
additional days, returning to work in the first week of May.
Upon her return, she uas unable to work fulltime. She
doubted whether thereafter she had ever been able to
complete a full 40 hours in any week and was sure she had
not returned to her 48-hour schedule. She testified that
Snow had been very kind and considerate about the
problem. In his testimony Snow gave no indication of any
problems with Blackman before she was denied a raise in
May.
Respondent's evidence was unclear and confused as to
when and,by whom the decision to discharge Blackman
was made. Snow testified that he decided to fire her the
evening of June 5, just before he telephoned her at home
after she had finished the day's work. Sinks testified that it
was his decision "to fire Blackman" and he "suggested it to
Mr. Snow" when Sinks was at the store on June 3 or 4.
Sinks also testified that he first wanted to consult Pessin.
Sinks had earlier testified that when he was at the store on
Saturday or Sunday, June 1 or 2, and Blackman made her
"threat," he simply "walked away from her" and returned
to the home office, in St. Louis, and spoke to Pessin. Then
"about the same morning," Blackman telephoned Sinks
and repeated her statement when she was informed that
she was not to receive a raise at that time. Sinks replied
that Blackman should do what she had to and Sinks would
do what he had to. Just then Pessin came by and asked
Sinks what the telephone conversation had been about.
Sinks further testified that when he told Pessin, Pessin
telephoned Snow and that "if she wasn't doing the job ...
she should be dismissed." Pessin testified that it was on
Monday or Tuesday that he ordered Snow "to discharge
her right now." Thus Snow, Pessin, and Sinks were each
"credited" with the decision to fire Blackman. As previous-
ly noted, Snow testified that he decided to fire Blackman
only after she had left work on Wednesday, June 5.
Significantly,, Snow, did not mention having received any
order from Pessin or "suggestion" from Sinks.
There was no management discussion concerning a
replacement for Blackman before she was discharged. The
next day Respondent recalled,Penny Mason, who had been
laid off a month or so previously. Mason started to work
on Friday, June 7. Assistant Manager Walter Bailey
testified that he then went to work in the drug department
on Monday, June 10. So far as appears, there had been no
prior plans for his doing so.
Blackman's testimony impressed me as being as forth-
right as (although more dignified than) the rather graphic
language she admits having used around June 1 or 2 in
expressing her displeasure at not having received a pay
raise. I credit her testimony that she "threatened" only to
stop performing functions beyond the narrowly circum-
scribed duties of her job, without the special responsibili-
ties and added work inherent in "running" or "managing"
the drug department. I correspondingly discredit the
11 Actually, because of illness , Blackman never worked more than 40
hours a week after May 1 and thus never received any overtime pay at the
new rate.
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony of Respondent' s witnesses that Blackman had
"threatened" to do "nothing." Indeed, none of Respon-
dent's witnesses testified that she ever did "nothing"; the
most anyone ever claimed was that generally the move-
ment of goods from the warehouse area and the stocking of
shelves in the drug department deteriorated. This would be
consistent with Blackman's contentions that her "threat"
was limited and other employees were not properly
stocking their shelves. And it would be consistent with
Sinks' indication that some difficulties in the department
arose in April. At that time Blackman was out on sick
leave.
In any event, the general confusion and inconsistencies
in Respondent's evidence refute its contention that
Blackman was discharged for inadequate performance.
Perhaps most noteworthy is Sinks' testimony that Black-
man's work had started to deteriorate around the middle of
April, before any problem arose concerning Blackman's
wage rate. Snow indicated that in May he did his best to
try to get her a raise; that her performance started to
decline after she was denied a raise and made her "threat;"
it was only then that he spoke to her about the matter. But
Snow could not have spoken to her several times thereafter,
as he maintained, because, according to Respondent, the
"threat" was not made until at most 2 or 4 days before the
discharge (i.e., June 1 or 3, since she did not work Sunday,
June 2). Pessin testified that on Monday or Tuesday he
ordered Snow to discharge Blackman "right away"; Snow
did not testify to having received any such instruction but
testified, rather, that he, Snow, decided to discharge
Blackman on Wednesday evening.
I do not understand Respondent to maintain that it was
Blackman's uncouth language which alone, or even
principally, dictated her discharge. There was some
evidence in the record that departures from polite language
are 'not entirely unknown in the store, even among
supervisory personnel. If the alleged deterioration in the
quality of her work was the real cause, one would normally
expect that she would be warned. Additionally, one would
normally expect that the means of replacing the employee
would be determined in advance of her discharge. And,
finally, it would be reasonable to expect the discharge to be
made during working hours and probably at the end of the
pay period, which was Friday. Totally absent is any
explanation by Respondent as to why Blackman's dis-
charge was so urgent that it was made in the evening, after
she had finished a full day's work without incident or
comment. The obvious reason for the peculiar timing lies
in the fact that the first union meeting, which had 'been
arranged and advertised by Blackman, was scheduled for
the next day. That Respondent's representatives knew of
this scheduled meeting is clear: Snow informed Walter
Bailey of the meeting the same evening that he discharged
Bailey and Blackman. It is difficult to imagine any conduct
better calculated to abort union organization than the
discharge of the two instigators the night before the
scheduled first organizational meeting.
12 Snow may have inadvertently disclosed the pretextual nature of the
"cause" for ,the ftcharge when he testified: "I made a couple or maybe
three phone calls and I got in touch with the person that carried Mr. Bailey
to the railroad shop for an interview . And he come forward and gave me
what information I needed." (Emphasis.supplied .) Snow did not say why he
On all the evidence, it is clear, and I find, that JoAnn
Blackman was discharged on June 5 because of her union
activities, in violation of Section 8(aX3) and (1) of the Act.
b. Glenn Bailey
Glenn Bailey had worked as a warehouseman at Uncle
Lee's since February 1968. So far as appears his work had
always been satisfactory. As previously stated, he was
discharged by telephone on the evening of June 5.
According to Respondent, Glenn was discharged because
he was seeking employment elsewhere.
Glenn openly conceded that he had been looking for
other employment and had so informed Snow. Glenn's
brother, assistant store manager, testified that Glenn had
said he was seeking other employment "often, all the time."
Snow testified that, around the beginning of May, Glenn
announced that he had applied for employment at a
chemical complex in Calvert City and that if he obtained
such job he would leave Respondent forthwith, without
any further notice. However, Pessin later testified that he
had visited the store sometime in May and "Snow told me
that Mr. Bailey had come to him and had given 'him what
he thought was a 30-day notice, stating that he had put an
application in to some place out in Calvert City, and he
was looking for employment in a couple of other places
and as soon as he got word that he was going to have a job,
that he was not going to come in."
Snow testified that he decided to discharge Bailey on the
evening of June 5, after two or three telephone calls in
which he learned that Bailey had recently applied for
employment and had had an interview with a railroad.12
Pessin testified that at that time Snow telephonically
reported that he was going to discharge Bailey because of
the application for employment at the railroad . Pessin
agreed, in effect, with Snow's view that Bailey should be
discharged at Respondent's, rather than the employee's,
convenience. Walter Bailey testified that, on the evening of
June 5, Snow informed him by telephone of the imminent
discharges. Walter quoted Snow as having mentioned only
the Calvert City application at that time.13 Neither Pessin
nor Snow undertook to explain why Respondent's conven-
ience called for discharging Bailey abruptly the evening of
Wednesday, June 5, in the middle of a payroll period.
Snow testified that he then had a replacement in training,
who was working out quite well. But no specifics were
provided as to when the replacement had been hired' or,
indeed, whether or when he actually took over Bailey's
work.
At the hearing both Pessin and Snow attempted to
establish that Bailey's work was not up to standard. Pessin
testified that in his May visit to the store he was dissatisfied
with the condition of the warehouse, because "[m ]er-
chandise was sitting too close to the receiving door and
was not being funneled back into either the stalls or into
the shelves." Pessin said that he had a "serious talk" with
Snow about the matter and Snow at that time reported
"needed" information about Glenn Bailey.
13 Over 4 months later, Glenn had not been hired by the railroad but had
been physically examined for such a job a few days before the hearing in
October.
UNCLE LEE'S 467
Bailey's alleged "notice," as quoted above. Pessin then
testified that he told Snow that "in my estimation Mr.
Bailey was not fulfilling his duties." But Pessin had no idea
how many employees there were in the warehouse and, so
far as appears, made no effort to ascertain whether Glenn
alone could be blamed for any deficiencies. Snow testified
that he discharged Bailey for "an accumulation of reasons"
- primarily "because he was seeking employment at other
places," but also because the work "wasn't being done
properly." Snow further testified that he had told Bailey
"on several occasions that he was going to have to be nicer
to the employees, and he was going to have to get his
merchandise moved down in the warehouse further."
However, in a prehearing interview Snow had told a Board
agent that he had never discussed with Glenn his alleged
inadequacies and that "Bailey's work performance didn't
play ainy part in his termination." 14
On all the evidence, including the timing of the
discharge, as discussed above in connection with the
simultaneous discharge of Blackman, and Respondent's
unsatisfactory explanation, I find that Glenn Bailey was
discriminatorily discharged in violation of Section 8(a)(3)
and (1) of the Act.
2. Discharge of Sheila Ray
Ray had been employed as a checker at Uncle Lee's
since September 1973. In early June, when the present
union organizing campaign was begun, she was out of
work on sick leave. As previously found, on June 6, the day
of the first union meeting, Snow telephoned her at home
and inquired about the Union. At that time Ray truthfully
answered that she would probably vote against the Union
because, being away from work, she knew nothing about it.
Snow indicated he considered her wise for not favoring the
Union since Glenn Bailey and Blackman had been fired
for sponsoring the Union. However, on the night of June 6
she was visited by two other employees. At that time she
signed a union card and thereafter became an active union
supporter, talking to "[j ]ust about everybody in the store"
about the Union. Upon her return to work on June 11,
Supervisor Bailey questioned Ray about the Union and
stated that he knew she had signed a union card. She was
discharged on June 17.
With Respondent's union animus and knowledge of
Ray's position established, her abrupt discharge creates a
sufficient prima facie showing of discrimination to require
analysis of Respondent's claimed reason for the discharge.
According to Respondent, Ray was discharged for what
Assistant Manager Bailey called "stealing." The incident
allegedly causing the discharge occurred on the afternoon
or evening of Saturday, June 15. According to Respondent,
at that time Cindy Rose, the sister of an employee, and
14 Snow testified that at least part of his preheanng statement "wasn't
true." He apparently sought to avoid the force of his preheating statement
by pointing out that he had not signed it. However, he acknowledged that
the written document produced was "the statement that [he] gave to" the
Board agent and testified that he had refused to sign it only because
sometime in the past he had been criticized by his superiors for giving a
signed statement.
15 inn cross-examination Ray testified that Cindy paid for the soft drinks
and small glassware and her companion paid for the trash can.
another girl went through Ray's checkout counter without
paying for certain merchandise which they had taken.
Ray testified as follows concerning the incident: Just
after she had arrived at the store and was changing the tape
on her register to begin working, Cindy Rose and another
girl came to the checkout counter. At that point one of
them dropped a bottle, which broke. Assistant Manager
Bailey gave them a mop and they cleaned the floor. By the
time they finished, Ray was ready to check them out.
Cindy Rose was first and had a trash can, which Ray rang
up. Her companion then went through the line with three
soft drinks and a few small glass items, the total cost being
about $3.15 The two girls then left the checkout counter
toward the door. At that point Bailey approached, pushing
some carts, and asked Ray if she had looked in the trash
can and rung up the items inside it. She said she had
looked in but there was nothing inside. Bailey maintained
that the girls had taken about $10 worth of merchandise.
Ray insisted then, as she did in testifying, that there had
been nothing inside the trash can.ls Bailey made no
attempt to stop the girls, although they had not yet left the
premises.
At or about 2 p.m. on Monday, Ray was called into
Snow's office, where she was told she was being discharged
for two reasons: one involved the theft of a bicycle at an
earlier time; the other the trash can incident of June 1.
Snow was the first witness for Respondent to testify
concerning Ray's discharge. He maintained that Ray had
been "under suspicion" but he did not specify the basis or
nature of the "suspicion." He testified that he discharged
Ray solely on the basis of Bailey's report of the trash can
incident 17 and made no mention of the bicycle matter.
Snow did not at any time question or speak to Ray, either
of the suspected "shoplifters" or employee Linda Rose,
who assertedly gave Bailey $15 in payment for the
allegedly stolen merchandise. Snow testified that Bailey
said he "saw Sheila Ray look into the garbage can... and
only rang up the price of the garbage can, or less." Bailey
later testified unequivocally that he had not seen whether
Ray had looked into the can. On this point all Bailey had
told Snow was that he had asked Ray and she said she had
looked into the can. Snow further testified that Bailey said
the reason he had not done anything at the moment was
that "he was trying to use a little discretion in that her
sister was an employee of ours." However, in his
prehearing interview with a Board agent, Snow had said
that Bailey had done nothing at the time because he was
then too busy.
Snow conceded that Respondent has a policy, posted on
the premises, to prosecute shoplifters. However, he said
whether action is taken "depends on their age and the
situation at that time." On a first offense by a young
juvenile, he tries to deal through the parents; "[i]n the case
16 She further testified that a check made at that time indicated that the
customers apparently "had changed the tag on waste can," reducing the
price by around $2. Although, as noted below, this matter has some
relevance in determining credibility, Bailey and Snow testified that the price
of the trash can was not involved or in issue in Ray's discharge.
17 At first Snow indicated that he also spoke to Donme Evans , manager
of a leased department, who, as set forth below, testified to having observed
part of the incident. However, further questioning of Snow indicated that he
had not spoken to Evans before the discharge. ,
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of an older juvenile, I use my own judgment on should I
send him downtown, or try to deal through the parent."
Snow did not know, and had not asked Bailey, the
approximate age of the alleged shoplifters here involved.
Bailey and Evans later testified that the girls were around
17 to 19 years old. When Bailey was asked if Respondent
had a policy to prosecute shoplifters, he said: "Not
necessarily." But when counsel indicated that Snow had
testified to such a policy, Bailey changed his testimony and
said: "Unless there's something special about the case we
will prosecute."
Bailey testified that he saw the two girls pick up certain
merchandise, consisting of hair rollers, aftershave lotion,
and similar cosmetic items, in the drug department and
then proceed to other areas of the store holding the items
in their hands. The next time he saw them, they had a 20-
gallon trash can and the drug-department items in a
shopping cart. He saw them later with only the trash can in
the cart. At that point, not seeing the cosmetic items-in the
girls' possession, Bailey went through the various aisles
looking to see if possibly they had put them down
somewhere, since they had not returned to the drug
department. Not finding the goods elsewhere, he conclud-
ed that they were in the garbage can. He next saw the two
girls right after Cindy Rose had gone through the checkout
and Ray had,rung up only the cost of the garbage can.
Bailey testified that Cindy's companion then had Ray ring
up some small items, none of them from the drug
department, for a total of around $3. Bailey was unable to
explain why he had stopped watching the two girls despite
the fact that he apparently suspected from the beginning
that they might attempt to leave the store without paying
for the drug-department items they had taken. Additional-
ly, he did not undertake to explain how he could have
known, as he claimed, that they had not at some time
returned to the drug department, where they could have
returned the items in question.18 Bailey was not questioned
about, and thus did not deny, Ray's testimony that he had
provided the girls with a mop to use at the checkout just
before they went through.
Bailey also testified that Donnie Evans, manager of the
leased sporting goods department,19 said he had seen the
girls put some phonograph records in the trash can, but
Bailey did not specify when Evans told him. Evans'
testimony is particularly significant because of its contrast
with Walter Bailey's. Evans testified that, shortly after the
two girls had left the drug department, he was asked by
Bailey to watch them: "He just told me these girls had a lot
of merchandise, and he just . . . told me would I watch
them when they come by." Evans thereupon stationed
himself near , the phonograph records sales area, which is at
the front of the store, relatively near the checkout area.
18 He testified: "All I was concerned with was the drug store stuff
because they had left the drug store I knew there was no way - If I stood
by the drug store, reasonably close, there was no way they could get back in
there without me seeing them,, so I dust let them go through the store." His
further testimony, however, indicates that he moved about a great deal
during the time in question. When asked at what point he had stopped
watching the girls, Bailey said: "I just waited for them - Well, something
- I believe something did [happen ] that I did need to take care of and I did
come back right around checkout, just as they was checking out "
19 The sporting goods department is leased by Thomas Snow, brother of
Respondent's store manager, Charles Snow. Evans testified that he did not
While there, he saw the two girls pick up some records, put
them in the garbage can and go through Ray's checkout
line. He affirmatively described the garbage can as being
plastic, with a gray cover, but he was not sure of the color
of the can itself.20 Respondent's witnesses all indicated that
galvanized cans are marked in large writing with a felt
tipped pen, whereas plastic cans are apparently, marked
with paper stickers. The difference in the manner of
marking is significant in light of the testimony indicating
that the girls may have altered the price marking on the
can. Ray was not asked what kind of garbage or trash can
was involved; but she did testify that they had apparently
"changed the tag" and she had later shown Bailey the kind
of can they had. Such a change apparently could have been
made only on a plastic can.
Although he had been asked to watch the girls, and had
thus presumably stationed himself where he could do so
effectively, Evans testified that he did not see whether Ray
had opened and looked into the can. He further testified
affirmatively that the two girls had gone through the
checkout together and Ray had rung up only one sale, the
trash can; Cindy's companion had not checked out any
items. It will be recalled that Ray testified that the
companion had bought some soft drinks and Bailey
testified that she had purchased, and had checked out,
about $3 worth of miscellaneous small items. Evans
testified further that he reported his observations to Bailey
immediately after the girls had gone through the checkout.
Thereupon, according to Evans, the two men spent about
half an hour going through the store.
It is most significant that in testifying Bailey never
mentioned his having asked Evans to watch the girls.
Additionally, Bailey testified that he had gone through the
store looking for the items before the girls reached the
checkout but he made no reference to a subsequent search
conducted jointly with Evans.
Bailey testified that he reached the checkout counter just
after Cindy had gone through with the garbage can and
just as the other girl was having her few small items
checked out. He immediately challenged Ray, who
maintained that she had looked into the garbage can and
there was nothing in it. He told Ray that he was sure the
girls had taken about $12 worth of assorted cosmetic items,
which he generally listed. He then telephoned employee
Linda Rose, Cindy's sister, at home and informed her of
the matter and "told her that [he] wanted the money for
the merchandise." The next day Linda Rose came to the
store and gave Bailey $15 in payment for the allegedly
purloined goods. On cross-examination , Bailey testified
that Linda Rose said the goods had been in the garbage
pail and cost $15 rather than the $12 which Bailey had
calculated. Bailey's hearsay testimony concerning Linda's
know of any union organizational activity among the employees of his
department. In an informal conference on the Union's representation
petition a dispute arose about the inclusion within the bargaining unit of the
employees of the leased departments . Because of this dispute, the Union
withdrew its petition.
20 on redirect examination, Respondent's counsel, through a leading
question, obtained from Evans a statement that the garbage can "could
have been something other than plastic, I guess. I didn't check the garbage
can " The description of the can as plastic had first been made in a leading
question put to Evans by the General Counsel. However, Evans had later
affirmatively so described it.
UNCLE LEE'S 469
statements were uncorroborated. Although Linda Rose
apparently still works for Respondent, and Bailey testified
that he had had no personnel or other difficulties with her,
she was not called to testify and her absence was not
explained.21 Golden State Bottling Company, Inc., d/b/a
Pepsi-Cola Bottling Company of Sacramento v. N.L.R.B.,
414 U.S. 168, 174, footnote 3 (1973); San Francisco Local
Joint Executive Board of Culinary Workers [McDonald's
System of California] v. N.LR.B., 501 F.2d 794, footnote
12 (C.A.D.C., 1974). It is also significant that, so far as
appears, Bailey never referred to the phonograph records
which Evans affirmatively testified he told Bailey he had
seen the girls put in the garbage can. There is no suggestion
that the records were mentioned in any conversation
between Bailey and Linda Rose or in Bailey's report to
Snow. Since the number and identity of the records are not
disclosed, it is possible that their value might even have
exceeded that of the drug-department items.
As to the bicycle incident, Ray testified that shortly
before Christmas of 1973 a boy stole a bicycle from the
store and she had been blamed for it although she had not
been present. When Snow discharged her, she repeated
that she had had nothing to do with the bicycle incident
and had so informed Snow at the time. She was not cross-
examined concerning the bicycle incident.
Respondent's evidence concerning the alleged bicycle
incident is as confused and unconvincing as that concern-
ing the garbage can matter. Snow, Respondent's first
witness, did not testify concerning the bicycle incident but
simply testified very generally that Ray had been under
"suspicion." It was Walter Bailey who testified for
Respondent concerning the earlier incident. He first said it
occurred about 2 months before the discharge but later
placed it possibly 3, 4, or 5 months, though he doubted that
it had happened as early as the past Christmas season.
According to Bailey, an employee had walked out of the
store with a bicycle. When questioned, the employee said
he, had given Ray $40 as a deposit. Still, according to
Bailey, the employee fetched Ray back to the store and she
confirmed the employee's statement. On the following day,
however, Ray said she had received only $20 for the
bicycle. ' Bailey opined that Ray's conduct was at least
"unethical." When asked what had eventually happened,
Bailey replied that he did not know because the matter had
been turned over to Snow, who handled it thereafter. In
view of Snow's total silence as to the incident at the
hearing, the fact that Ray continued to work for Respon-
dent until June, and testimony by both Snow and Bailey
that they had had no personnel problems with her, there is
no' basis for finding that the previous bicycle incident,
whatever its actual nature, played any part in the
discharge. I credit Ray's testimony that Snow listed that
incident as one of the grounds for the discharge in June.
His doing so provides additional' grounds for concluding
that the reasons for the discharge were purely pretextual,
the real reason being Ray's union activities and sympa-
thies.
21 In its brief, Respondent says: "If these facts [i.e., those testified to by
Bailey and Evans] were not so, Ray could have obtained Cindy Rose or
Cindy's companion of that evening or Linda Rose to contradict the
testimony of this occurrence. She did not do so." The evidence, however,
was germane only to Respondent's affirmative defense that Ray was
Snow testified: "I've never done anything drastic on
rumor or hearsay. I have to have some kind of proof or
self-satisfaction." Despite this professed cautious personnel
policy, , Snow summarily discharged Ray without ever
questioning her or giving her any chance to state her
version of the events. Snow testified that Bailey had found
her "stealing." Even if Bailey's testimony were to be
credited in full (which it cannot be), it would not show that
Ray had been dishonest rather than, at most, careless in
failure to inspect the garbage can properly. Both Snow and
Bailey testified that Bailey had the authority to hire and
fire employees. Bailey, who did question Ray, did not
discharge her and, so far as the record discloses, did not
recommend either discharge or any other discipline.
Neither Snow nor Bailey spoke to the alleged shoplifters.
At most, Bailey had Linda Rose's statement that the
merchandise was in the garbage can. The source of Linda's
information was not indicated. Her statement may well
have been based on surmise similar to that on which Bailey
said he concluded that the merchandise was in the can
although he had not seen it there. If Bailey had really
thought that Ray was being dishonest, it is inconceivable
that he would have been satisfied to drop the matter simply
because Linda Rose had paid for the drug department
merchandise, without even a reference to possibly stolen
phonograph records. As assistant store manager, Bailey
could hardly have been willing to continue the employ-
ment of a cashier whom he believed he had caught in the
act of stealing, particularly if, as he testified, he had
previously "been informed by several employees in the
store that she was letting certain people have merchandise
like a dime on a dollar." It is incredible that some sort of
investigation or surveillance of Ray would not have been
instituted. Yet there is no evidence that such course had
been followed. The garbage can affair stemmed solely from
Bailey's suspicion of the two shoppers.
On all the evidence, I find that, as alleged in the
complaint, Sheila Ray was discharged on Jane 17 in
contravention of Section 8(a)(3) and (1) of the Act because
of her support of the Union.
CONCLUSIONS OF LAW
1. Respondent is and has been at all times material
herein an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By threatening closure of Uncle Lee's in Paducah,
Kentucky, if the employees chose to be represented by a
union; by interrogating employees concerning their union
sympathies and activities; and by giving employees the
impression that their union activities were being subjected
to surveillance, Respondent has violated Section 8(a)(1) of
the Act.
4. By discharging employees JoAnn Blackman, Glenn
Bailey, and Sheila Ray, and not thereafter offering them
discharged for cause. While the two shoppers might reasonably have refused
to testify on constitutional grounds, employee Linda Rose presumably
could not invoke such privilege. Clearly Respondent may not rely on
hearsay and place on the General Counsel the burden to rebut by calling
Linda as his own witness.
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reinstatement, Respondent has discriminated in regard to
hire and tenure of employment to discourage membership
in a labor organization, and thereby has committed and is
committing unfair practices within the meaning of Section
8(a)(3) and (1) of the Act.
THE REMEDY
Having found that Respondent violated Section 8(a)(1)
and (3) of the Act, I shall recommend that it be required to
cease and desist therefrom and take affirmative action
designed to effectuate the policies of the Act, in accord-
ance with usual Board practice in such cases.
Having found that Blackman, Bailey, and Ray were
discriminatorily discharged, I shall recommend the cus-
tomary reinstatement and backpay remedy, backpay to be
computed in accordance with F. W Woolworth Company,
90 NLRB 289 (1950), with 6 percent per annum interest in
accordance with Isis Plumbing & Heating Co., 138 NLRB
716 (1962).
A special word should be added concerning Ray. In
N.L.RB. v. Commonwealth Foods, Inc., (West End) d/b/a
Farm Fresh Supermarkets, supra, the Court of Appeals for
the Fourth Circuit recently held, in effect, that reinstate-
ment could not properly be ordered for employees found
guilty of theft. Whether or not that decision represents the
Board's view (by which I am bound), it is inapplicable to
the present case since I specifically find that, having been
afforded and fully availed itself of the opportunity to
litigate the issue, Respondent has failed to establish that
Ray was guilty of theft or other dishonest conduct which
might disqualify her for further employment. Accordingly,
the reinstatement remedy here provided is fully applicable
to Ray.
The Board has recently reaffirmed its view that "the
ultimate penalty of discharge, as retaliation for employees
exercising their Section 7 rights, strikes at the very heart of
the Act" and thus calls for a broad remedial order. Ohio
Power Company, 215 NLRB No. 13 (1974). In accordance
with that principle, I shall recommend a broad cease-and-
desist order in the present case.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER22
(c) Threatening employees with closure of any store if
they choose to be represented by a labor organization.
(d) Stating or implying in any manner that the union
activities of any employees have been or will be kept under
surveillance.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self
organization, to form labor organizations, tojom or assist a
labor organization, to bargain collectively through repre-
sentatives of their own choosing, to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or
all such activity.
2: Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act:
(a) Offer JoAnn Blackman, Glenn Bailey, and Sheila
Ray full and unconditional reinstatement to their former
jobs (or, if such positions no longer exist, to substantially
equivalent jobs) without prejudice to their seniority and
other rights and privileges, and make them whole for any
loss of earnings they have suffered as a result of the
discrimination against them, in the manner set forth in
"The Remedy" section of this Decision.
(b) Preserve and, upon request, make available to the
Board or its agent, for examination and copying, all payroll
records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary
to determine the amount of backpay, and other sums due
under the terms of this recommended Order.
(c) Post at its premises in Paducah, Kentucky, copies of
the attached notice marked "Appendix." 23 Copies of said
notice, on forms provided by the Board's Regional
Director for Region 9, shall, after being signed by
Respondent's authorized representative, be posted in said
premises by Respondent immediately upon receipt thereof
and maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken to ensure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
Respondent, Sands Industries, Inc., d/b/a Uncle Lee's,
Paducah, Kentucky, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in District Union Local
227, Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, or any other labor organiza-
tion, by discriminatorily discharging any employees or by
discriminating in any other manner in regard to hire and
tenure of employment or any term or condition of
employment.
(b) Coercively interrogating any employees concerning
the union activities or sympathies of themselves or of other
employees.
22 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
23 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
UNCLE LEE'S 471
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After hearing before an administrative law judge of the
National Labor Relations Board, at which all sides had the
opportunity to present evidence and arguments, it has been
decided that we, Sands Industries, Inc., d/b/a Uncle Lee's,
have violated the National Labor Relations Act. We have
therefore been ordered to post this notice and do what it
says.
The National Labor Relations Act gives you, as
employees, certain rights, including the right to engage
in self-organization, to form or join or help unions, and
to bargain collectively through a representative of your
own choosing (or, if you wish, not to do so), without
dliscrimination, interference, restraint, or coercion by us
as your employer.
Accordingly, we assure you that:
WE WILL NOT in any manner violate your rights
under the National Labor Relations Act.
WE WILL offer JoAnn Blackman, Glenn Bailey and
Sheila Ray immediate, full, and unconditional re-
instatement to their former jobs and seniority with us
and will reemploy them just as if we had not discharged
them in June 1974; and WE WILL pay them for any
wages lost, plus interest, because of their discharges.
WE WILL NOT unlawfully question you about your
union activities or sympathies, and WE WILL NOT do
anything to give you the impression that your union
activities are being or will be watched.
WE WILL NOT threaten to close any store or other
installation if the employees should choose to be
represented by District Union Local 227, Amalgamat-
ed Meat Cutters and Butcher Workmen of North
America, AFL-CIO, or any other labor organization.
WE WILL NOT, in violation of the National Labor
Relations Act, discharge, lay off, suspend, fail or refuse
to reinstate or rehire, or take any other economic or
other reprisal or disciplinary action against any
employee because of his or her union or other lawful
organizational concerted activities, sympathies, affilia-
tion, or interest.
All of our employees are free to become or remain
members of District Union Local 227, Amalgamated Meat
Cutters and Butcher Workmen of North America, AFL-
CIO, or any other labor organization, or to refrain
therefrom except to the extent that such right may be
affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized
in Section 8(a)(3) of the Act.
SANDS INDUSTRIES, INC.,
D/B/A UNCLE LEE'S